In the year since the last activists were evicted, the crackdown on journalists and activists has only intensified.

By Zoë Carpenter

February 23, 2017: Law-enforcement officers point their weapons at two water protectors praying near the Sacred Fire of the main resistance camp of the Dakota Access Pipeline protests. Both men were arrested, along with the photographer, shortly after this image was taken. (Tracie Williams)

On February 23 of last year, a day when the frozen ground had started to turn to mud, law-enforcement officers rolled into the Oceti Sakowin camp near the Standing Rock Sioux reservation in North Dakota. Donald Trump had been inaugurated a month earlier, and the new president quickly reversed an Obama administration decision to deny Energy Transfer Partners a permit to finish construction of the Dakota Access Pipeline, a $3.78 billion project running directly under the Missouri River. The water protectors, as protesters called themselves, had been fighting the pipeline since the spring of 2016, concerned that the proposed route cut through ancestral land of spiritual significance, and that a pipeline leak could contaminate the primary water supply to the reservation. The small group who had remained through the bitter winter at Oceti Sakowin had been ordered to leave by February 22 or face eviction and arrest. Most did; a few dozen remained the following the day, when Humvees with snipers on their roofs rolled into camp, a helicopter buzzing above them.

Photojournalist Tracie Williams, on assignment for the National Press Photographers’ Association, captured some of what happened next. Officers wearing military fatigues walked through the camp with assault rifles and knives, which they used to slice open the skins of teepees. Rain and fat flakes of snow fell against a backdrop of smoke rising from structures that had been set alight in a ceremonial gesture. Moments after clicking through the last two frames on her memory card—of two men in prayer, weapons aimed at their heads—she was arrested. Williams, who had been documenting life at Oceti Sakowin for three weeks leading up to the raid, told officers she was a journalist—and says she’d previously identified herself as a member of the press to the governor and the Army Corps and let them know that she’d be there, documenting, and obtained a press credential from the Morton County Sheriff—but they confiscated her equipment as evidence and detained her anyway. Williams was later charged with physical obstruction of government function, a Class A misdemeanor that could result in a year in jail and $3,000 in fines. Her trial is scheduled for June.

Lissa Lucas traveled the 100 miles from her home in Cairo, West Virginia to the state capitol in Charleston yesterday to testify against an oil and gas industry sponsored bill (HB 4268) that would allow companies to drill on minority mineral owners’ land without their consent.

Lucas began to testify to the House Judiciary Committee, but a few minutes in, her microphone was turned off.

“As I tried to give my remarks at the public hearing this morning on HB 4268 in defense of our constitutional property rights, I got dragged out of House chambers,” Lucas said. “Why? Because I was listing out who has been donating to Delegates on the Judiciary Committee.”

Over the past year, oil and gas industry plans to build a petrochemical refining and storage hub along the Ohio River have steadily gained traction. Proponents hope this potential hub, which would straddle Pennsylvania, Ohio, West Virginia, and Kentucky, could someday rival the industrial corridor found along the Gulf Coast in Texas and Louisiana.

Those plans center around creating what is known as the Appalachian Storage Hub, which received a major boost on November 9 during a trade mission to China attended by President Donald Trump and U.S. Secretary of Commerce Wilbur Ross. At that trade mission, also attended by Chinese President Xi Jinping, the China Energy Investment Corp. announced the signing of a memorandum of understanding (MOU) to invest $83.7 billion into the planned storage hub over 20 years. For comparison, West Virginia’s gross domestic product (GDP) in 2016 was $72.9 billion.

Though called the Appalachian Storage Hub as a broad-sweeping term, in practice the hub could encompass natural gas liquids storage, a market trading index center, a key pipeline feeding epicenter, and a petrochemical refinery row. Its prospective development has been spurred by the current construction of a $6 billion petrochemical refining facility in Pennsylvania owned by Shell Oil.

The proposed hub has come under fire from grassroots groups. But this proposal also has a powerful set of backers, including West Virginia’s five-member congressional delegation, the state’s Governor and Secretary of Commerce, West Virginia University, the chemical industry’s trade association, Shell Oil, and the Trump administration, among others.

Miles of river (Ohio and Kanawha) that will be impacted by the proposed Appalachian Storage Hub and it’s Petrochemical Intermediate and Raw Material Infrastructure. This will potentially impact 50 counties in the Tri-State are of WV, PA, and OH. The total square miles of the impacted area is yet to be determined.

386 miles total down the Ohio River from Beaver, PA, to Catlettsburg, KY, with 68 miles down the Kanawha River from Point Pleasant, WV, to Charleston.

Detractors of the planned petrochemical hub believe that its construction would buoy the oil and gas industry in its efforts to further develop drilling and hydraulic fracturing (“fracking”) projects in Pennsylvania’s Marcellus Shale and Ohio’s Utica Shale basins.

On November 17, 2016, a Colorado environmental activist named Pete Kolbenschlag used Facebook to leave a comment on a local newspaper article, the kind of thing more than a billion people do every day.

However, most people don’t get sued for libel over their Facebook comments. (Although some do.)

The Post Independent story that Kolbenschlag commented on was about oil and gas extraction on federal lands near his home, in western Colorado’s North Fork Valley. It announced that the Obama administration’s Bureau of Land Management was canceling all oil and gas leases on the iconic Thompson Divide, a large, rugged swath of Forest Service land.

In retaliation, the article reported, a Texas-based oil and gas company called SG Interests (SGI), which owned 18 leases in the Thompson Divide area, was planning legal action against the federal government. The decision to cancel Thompson Divide leases was one of Obama’s last while in office.

SGI claimed it had obtained documents that “clearly show” that the decision to cancel the leases “was a predetermined political decision from the Obama administration taking orders from environmental groups.”

Kolbenschlag, who has opposed drilling in the region and engaged in environmental advocacy for some 20 years, responded to SGI’s allegations by posting the following comment:

“While SGI alleges “collusion” let us recall that it, SGI, was actually fined for colluding (with GEC) to rig bid prices and rip off American taxpayers. Yes, these two companies owned by billionaires thought it appropriate to pad their portfolios at the expense of you and I and every other hard-working American.”

SGI Investigation and Settlement

Kolbenschlag’s comment was in reference to a settlement SGI and Gunnison Energy Company (GEC), another oil and gas firm active on federal lands in the region, signed with the U.S. Department of Justice in 2012.

According to court documents filed by SGI, the settlement followed a two-year investigation into a Memorandum of Understanding (MOU) between the two oil and gas companies in which “SGI would bid on certain federal oil and gas leases … and … SGI would assign GEC a 50 percent interest in any leases for which it was the successful bidder.” In other words, rather than compete in the bidding process, SGI would do the bidding, and then give GEC half of the mineral rights.

According to these court documents, the Justice Department’s two-year investigation led it to determine “that SGI’s and GEC’s agreement to bid jointly pursuant to the MOU constituted a per se violation of Section 1 of the Sherman [Antitrust] Act.”

The original settlement “required” the companies to pay $550,000 for “antitrust and False Claims Act violations.” It was the first time the federal government challenged an “anticompetitive bidding agreement for mineral rights leases.” That settlement, however, was later rejected by a federal judge, who approved a new settlement of $1 million and did not require the companies to admit to wrongdoing.

Libel or Retaliation?

SGI argues that Kolbenschlag’s statement that the company was fined for colluding with GEC is libelous because it is “contrary to the true facts, and reasonable persons … reading … the statement would be likely to think significantly less favorably about [SGI] than they would if they knew the true facts.”

The company argues that it was never convicted of or admitted to wrongdoing, and the settlement agreement did not require it. SGI further argues that it was not “fined,” but rather agreed to pay the government money to settle the case.

Moreover, SGI claims that “agreements such as the ones entered into between SGI and GEC are common place in the oil and gas industry.” And therefore, presumably, there’s nothing wrong with what they did.

Kolbenschlag’s attorney not only argues that his client’s comment was “substantially true” in the eyes of ordinary readers, but also that SGI’s lawsuit against him is in retaliation against his environmental activism. In legal briefs, his attorney writes that “this lawsuit is SGI’s transparent and blatant effort to punish Mr. Kolbenschlag for his public speech and advocacy that are not to SGI’s liking.”

For example, Kolbenschlag was part of a group called Citizens for a Healthy Community that focused on BLM rulemaking related to hydraulic fracturing (fracking) on federal lands. “SGI is misusing the judicial system as the means to silence its critics,” claimed Kolbenschlag’s attorney.

Two views of what a typical oil pipeline “spill” on dry land looks like after crews begin digging up part of the most superficial layer of the oil-saturated, totally irremediable, contaminated wheat field soil that was in the vicinity of the pipeline rupture.

The photos above were taken soon after the 2013 underground rupture of a Tesoro pipeline near Tioga, North Dakota. Farmer Steve Jensen, who had been paid by the pipeline company in exchange for permission to bury the pipe across his farmland, discovered the massive oil contamination of his wheat field while harvesting his crops on Sept 29, 2013. Jensen had to notify the company of its pipeline failure, because Tesoro’s state-of-the-art monitoring technology failed to detect the spill.

Tesoro initially grossly underestimated the significance of the spill (as is typical of all oil companies), claiming the volume of the spill, was 750 barrels. It was soon forced to publish a new figure of 20,600 barrels (which was likely also an under-estimate).

20,600 barrels is equivalent to 865,200 gallons, making the Tesoro pipeline oil spill the largest of the many spills that have plagued North Dakota since the Bakken Formation’s massive oil reserves were opened up to oil exploitation over the last two decades. The Bakken Formation, incidentally, was named after Henry Bakken a Tioga, North Dakota-area farmer where the massive oil deposit was originally discovered in 1951.

Tesoro re-named itself Andeavor a few months ago after it completed the acquisition of an oil refinery company. (Andeavor is currently valued at $105 per share on the New York Stock Exchange). The company is based in San Antonio, Texas,

The Political Economy Research Institute identified Tesoro as the 24th-largest corporate producer of air pollution in the US, releasing roughly 3,740,000 lbs of toxic chemicals annually. Major pollutants emitted annually by the corporation include more than 400,000 lbs of sulfuric acid. The EPA also named Tesoro a responsible party for four Superfund toxic waste sites.

With a new federal court ruling handed down late last Friday, a judge unwound a unanimous eight-person jury which had ordered Cabot to pay a total of $4.24 million over the contamination of two of those families’ drinking water wells. In a 58 page ruling, Magistrate Judge Martin C. Carlson discarded the jury’s verdict in Ely v. Cabot and ordered a new trial, extending the legal battle over one of the highest-profile and longest-running fracking-related water contamination cases in the country.

In his order, Judge Carlson chastised the plaintiff’s lawyers for “repeatedly inviting the jury to engage in unwarranted speculation” and wrote that, in his personal estimation, the plaintiffs had not presented enough evidence to warrant the jury’s $4.24 million in damages. The original complaint for the case was filed in November 2009.

Nonetheless, Judge Carlson declined to throw out the lawsuit entirely, ordering Cabot to re-start settlement talks with the Ely and Hubert families. If those talks fail, the trial process will begin anew, extending the already years-long legal battle into months or even years to come.

“The judge heard the same case that the jury heard and the jury was unanimous,” Nolan Scott Ely, the lead plaintiff in the case, said in a statement. “How can he take it upon himself to set aside their verdict? It’s outrageous.”

Retrials “Not as Rare”

Over time, Judge Carlson’s order noted, the plaintiffs’ legal complaints had been successfully winnowed down by Cabot, which was represented at trial by several lawyers from Norton Rose Fulbright, the tenth highest-grossing law firm in the world in 2016. The case now centers around a nuisance complaint.

Ely, whose background is in construction work, and his family and neighbors were represented at trial by a solo practitioner, Leslie Lewis, assisted by one other attorney. During one brief stint in the years leading up to the trial, the two families had no lawyer at all, but represented themselves. When the case began, they had the assistance of the firms Napoli Bern Ripka Shkolnik & Associates and the Jacob Fuchsberg Law Firm (the former employer of Lewis), which ushered in a settlement agreement with some of the 44 original plaintiffs.

But Ely and others were not satisfied with the offer, which included a non-disclosure agreement, and decided to proceed with the lawsuit.

John-Mark Stensvaag, an environmental law professor at the University of Iowa, said that orders to re-try cases “are not as rare as one might think.”

“This does not mean that the plaintiffs have no case,” he added, “it only means that, in [Judge Carlson’s] opinion, they have not presented a case justifying the jury’s verdict and should be given a second opportunity to present an adequate case.”

Carter Road Water Contamination

There’s little question that something is very wrong with the water on Carter Road, despite lingering questions in the legal battles centering around that contaminated water.

In 2016, shortly after the Elys and Huberts’ $4.24 million verdict, the Centers for Disease Control issued a report concluding that Dimock’s tainted waters carried dangerous levels of chemicals including arsenic, lithium, and 4-chlorophenyl phenyl ether (which is acutely toxic if swallowed). Further, the water was laced with enough methane that five of the homes on Carter Road had been at risk of exploding. Indeed, on New Year’s Day 2009, one of Dimock’s contaminated drinking water wells did explode.

Both Trump and Zinke say they oppose the transfer of federal land to states, but when it came to vote last week, Zinke voted to make it easier to do land transfers. This would not be good for the wild horses and burros.

Congressman Ryan Zinke (Montana)

Tuesday, Jan.172017

11:15 Pacific Time, 12:15 Mountain Time, 1:15 Central Time, 2:15 Eastern Time

366Dirksen02:15 PM

This notice is to advise you of a hearing before the Committee on Energy and Natural Resources. The hearing will be held on Tuesday, January 17, 2017 at 2:15 p.m. in Room 366 Dirksen Senate Office Building in Washington, DC.The purpose of the hearing is to consider the nomination of the Honorable Ryan Zinke to be the Secretary of the Interior.The hearing will be webcast live on the committee’s website, and an archived video will be available shortly after the hearing is complete. Witness testimony will be available on the website at the start of the hearing.